Clouded Precedent: Tandon v. Newsom and Its Implications for the Shadow Docket

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free Exercise Clause of the First Amendment. But Tandon also introduces an element of uncertainty. Will lower courts treat it as they would a merits decision, or will they apply it with caution, given its status as a shadow docket case?After reviewing the existing literature on the shadow docket and explaining the potential significance of Tandon, this Article examines the initial decisions that have grappled with the case. Noting that some judges have treated Tandon as a major shift in free-exercise law, while others have minimized or essentially ignored it, I suggest that in several respects Tandon is similar to Bush v. Gore, another per curiam opinion that some courts have been reluctant to apply as precedent. The experience of Tandon suggests that pronouncements in the Supreme Court’s shadow docket opinions do not produce the same level of consistency and legal certainty as those in merits opinions, providing further evidence for those arguing that the Court’s current shadow docket practices warrant reform

The Diverging Right(s) to Bear Arms: Private Armament and the Second and Fourteenth Amendments in Historical Context

This article compares the historical evolution of the social understanding of private armament with contemporary legal doctrine on the right to bear arms. The District of Columbia v. Heller decision, which held that the Second Amendment protects a personal right to self-defense, and the McDonald v. City of Chicago decision, which held the Second Amendment to be incorporated by the Fourteenth Amendment, both turned on extensive historical analysis. But by reading a broad “individual right to self-defense” into both the Second and Fourteenth Amendments, the Court assumed continuity between the social understandings at the time of these amendments’ respective ratifications. This assumed continuity is belied by the changing roles private weaponry played in American society.This article analyzes the historical development of the ideology of private armament between 1791 and 1868. While the framers of the Second Amendment were motivated by their suspicion of professional standing armies and their preference for citizen militias, the framers of the Fourteenth Amendment harbored no such beliefs and were strongly committed to the vitality of the U.S. Army. And while the arms right established by the Second Amendment may be described as primarily embodying libertarian political principles, the arms right embodied in the Fourteenth Amendment cannot be similarly viewed. Instead, civilian armament after the Civil War served both to protect newly freed African Americans in the South and also to expropriate land from indigenous peoples in the West — two goals that envisioned close cooperation between civilians and federal authorities. These radically different understandings can only be reconciled by defining the right to bear arms at such a high level of generality as to overlook the actual intentions of both amendments’ framers, thus undermining the project of originalism to which these contemporary decisions were ostensibly committed

Going Concerns and Environmental Concerns: Mitigating Climate Change through Bankruptcy Reform

This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate under Chapter 7 rather than reorganize under Chapter 11. These proposed reforms would also mandate the appointment of an environmental trustee and the consideration of the public interest during liquidation proceedings. The public interest would weigh in favor of reserving certain assets for climate remediation rather than selling them to other extractive firms on behalf of creditors.Anticipating the objection that climate policy is a non-bankruptcy matter that should accordingly be resolved outside of bankruptcy, I explore models for these proposals in existing insolvency law: the Securities Investor Protection Act, the history of reorganizations in the railroad industry, and the administration of mass tort cases. Under SIPA, stockbrokers are required to liquidate rather than reorganize to protect the investing public. In railroad bankruptcies, special trustees and judicial consideration of the public interest have long been required, primarily due to the historical significance of railroads to the U.S. economy. And the bankruptcy system has converted entities that caused mass torts into those that mitigate past harms. The special treatment of critical industries in bankruptcy to advance key societal goals, as proposed here, is thus consistent with existing law. This article concludes that bankruptcy reform has a role to play in addressing the climate emergency

Dual Allegiance: Federal and State Treason Prosecutions, the Treason Clause, and the Fourteenth Amendment

The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history.This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes contemporary state treason laws, showing that many, but not all, states have analogues to the Treason Clause in their own constitutions. The article focuses on those states that provide fewer protections for defendants accused of treason, or define treason more broadly than the federal Constitution, asking whether the Treason Clause should be incorporated against the states through the Fourteenth Amendment.While the doctrine of incorporation is normally applied to the Bill of Rights, I argue that the Treason Clause creates an individual right that is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” Its similarities to the Bill of Rights with respect to its structure and purpose argue in favor of incorporation. I also consider whether treason remains relevant in the modern context, given the lack of recent significant treason prosecutions, concluding that it does

The Faithless Elector and 2016: Constitutional Uncertainty After the Election of Donald Trump

Presidential electors are generally expected to vote for the candidate who won their state\u27s election, and those who do not are referred to as faithless electors. A majority of states have laws of varying types that bind their electors to vote for the winning presidential candidate. The 2016 election, for the first time in modern history, produced a serious movement urging electors to cast faithless votes against Donald Trump. Although this movement was not successful, 2016 saw the most faithless electors in recent history by a large margin. Three separate, ultimately unsuccessful, lawsuits were filed by would-be faithless electors in an attempt to invalidate their states\u27 binding laws.This article reviews the history of and academic literature on faithless electors. It then surveys the elector binding laws that exist today and reviews the operation of these laws after the 2016 election. I find that deterrence-based statutes in different states (notably Colorado and Hawaii) produced inconsistent results, in part due to the discretion that state election officials had over these laws’ enforcement. This article concludes that such discretion is problematic, as it could be exercised according to the political preferences of partisan state officials

Stabilized Access to Marginal Knowledge in the Health Professional Classroom

Graduate-level education in the health sciences builds from and is dependent upon knowledge supplied by prerequisite coursework. Such previously learned information may be stored well in memory without being readily accessible for application to facilitate new learning. Stored, but not retrievable information is termed “marginal knowledge”; psychology laboratory research has demonstrated that multiple-choice questions can be used to stabilize access to or “reactivate” marginal knowledge, even without feedback. Our study assessed whether this phenomenon was reproducible in an authentic classroom setting. One hundred and forty-five student pharmacists enrolled in the first-year Pharmacy Bridging Course (PBC) participated in this study, first completing a pre-course assessment comprising fill-in-the-blank questions about material covered in undergraduate prerequisites, but not to be covered in PBC. Students were then randomized to one of two groups to study three of the six lowest performance topics per the pre-assessment. After one week of PBC, students completed an interim assessment including study questions provided as fill-in-the-blank and then in multiple-choice format, without feedback. At the completion of PBC two weeks later, students repeated the pre-course assessment as a final exam. The interim multiple-choice test conferred better final exam performance on questions that students did not answer correctly on the pre-test, relative to the control condition (i.e., not taking the interim test; d = 1.03). In addition, the benefit of an interim multiple-choice question was significantly greater when students answered it correctly relative to incorrectly (d = 0.54). Interestingly, even incorrect responses on the interim test conferred a performance advantage over not taking the interim test (d = 0.61). Our study provides initial data to support that a multiple-choice test (even without feedback) in a genuine health professional classroom can produce a sufficient stimulus to stabilize marginal knowledge as demonstrated by improved retrieval of previously assessed material. We also know that this effect persists for at least two weeks as evidenced by the final exam performance; tracking this effect over longer follow-up periods provides an opportunity for further investigation.Doctor of Pharmac

Chimpanzees communicate to two different audiences during aggressive interactions

Conflict and aggressive interactions are common phenomena in group-living animals and vocal behaviour often plays an important role in determining their outcomes. In some species, vocal signals seem to provide bystanders with information about the nature of an ongoing aggressive interaction, which can be beneficial for the victims. For example, in chimpanzees and some other primates, victims adjust their screams depending on the composition of the by-standing audience, probably to solicit their support. Considerably less is known, however, about the role of other call types produced by victims of aggression. In this study, we focused on the fact that, immediately after screams, chimpanzee, Pan troglodytes schweinfurthii, victims often produce 'waa' barks, but little is known about their function. Our results showed that for screams, but not 'waa' barks, production was dependent on the audience composition with victims being more likely to scream when adult or late-adolescent males were in close proximity. We also found that after 'waa' barking, but not screaming, victims were more likely to retaliate against and less likely to reconcile with their aggressors, and that 'waa' barking was more common after victims had received support from other party members. These results suggest that, in chimpanzees, victims of aggression vocalize with a dual social strategy of attempting to recruit support from bystanders and to repel their attackers by signalling readiness to retaliate. We conclude that victim scream and 'waa' bark calls, although often produced during the same agonistic event, are directed at different audiences and fulfil different social functions, and that these calls can mediate both aggressive interactions and aggressor-victim relationships following aggression

Competition-induced stress does not explain deceptive alarm calling in tufted capuchin monkeys

Tactical deception has long attracted interest because it is often assumed to entail complex cognitive mechanisms. However, systematic evidence of tactical deception is rare and no study has attempted to determine whether such behaviours may be underpinned by relatively simple mechanisms. This study examined whether deceptive alarm calling among wild tufted capuchin monkeys, Cebus apella nigritus, feeding on contestable food resources can be potentially explained by a physiological mechanism, namely increased activation in the adrenocortex and the resulting production of glucocorticoids (GCs; ‘stress hormones’). This was tested experimentally in Iguazu? National Park, Argentina, by manipulating the potential for contest competition over food and noninvasively monitoring GC production through analysis of faecal hormone metabolites. If deceptive false alarms are indeed associated with adreno- cortical activity, it was predicted that the patterns of production of these calls would match the patterns of GC output, generally being higher in callers than noncallers in cases in which food is most contestable, and specifically being higher in callers on those occasions when a deceptive false alarm was produced. This hypothesis was not supported, as (1) GC output was significantly lower in association with the experimental introduction of contestable resources than in natural contexts wherein the potential for contest is lower, (2) within experimental contexts, there was a nonsignificant tendency for noncallers to show higher GC output than callers when food was most contestable, and (3) individuals did not show higher GC levels in cases in which they produced deceptive alarms relative to cases in which they did not. A learned association between the production of alarms and increased access to food may be the most likely cognitive explanation for this case of tactical deception, although unexplored physiological mechanisms also remain possible

Decrease in alarm call response among tufted capuchins in competitive feeding contexts: possible evidence for counterdeception

Animal signals function to elicit behaviors in receivers that ultimately benefit the signaler, while receivers should respond in a way that maximizes their own fitness. However, the best response may be difficult for receivers to determine when unreliable signaling is common. “Deceptive” alarm calling is common among tufted capuchins (Cebus apella nigritus) in competitive feeding contexts, and responding to these calls is costly. Receivers should thus vary their responses based on whether a call is likely to be reliable. If capuchins are indeed able to assess reliability, I predicted that receivers will be less likely to respond to alarms that are given during competitive feeding contexts than in noncompetitive contexts, and, within feeding contexts, that individuals inside or adjacent to a food patch will be less likely to respond to alarms than those further from the resource. I tested these predictions in a group of wild capuchins by observing the reactions of focal animals to alarm calls in both noncompetitive contexts and experimental feeding contexts. Antipredator escape reactions, but not vigilance reactions, occurred significantly less often in competitive feeding contexts than in noncompetitive contexts and individuals adjacent to food patches were more likely to respond to alarm calls than were those inside or further from food patches. Although not all predictions were fully supported, the findings demonstrate that receivers vary their behavior in a way that minimizes the costs associated with “deceptive” alarms, but further research is needed to determine whether or not this can be attributed to counterdeception

Detecting Instability in Animal Social Networks: Genetic Fragmentation Is Associated with Social Instability in Rhesus Macaques

The persistence of biological systems requires evolved mechanisms which promote stability. Cohesive primate social groups are one example of stable biological systems, which persist in spite of regular conflict. We suggest that genetic relatedness and its associated kinship structure are a potential source of stability in primate social groups as kinship structure is an important organizing principle in many animal societies. We investigated the effect of average genetic relatedness per matrilineal family on the stability of matrilineal grooming and agonistic interactions in 48 matrilines from seven captive groups of rhesus macaques. Matrilines with low average genetic relatedness show increased family-level instability such as: more sub-grouping in their matrilineal groom network, more frequent fighting with kin, and higher rates of wounding. Family-level instability in multiple matrilines within a group is further associated with group-level instability such as increased wounding. Stability appears to arise from the presence of clear matrilineal structure in the rhesus macaque group hierarchy, which is derived from cohesion among kin in their affiliative and agonistic interactions with each other. We conclude that genetic relatedness and kinship structure are an important source of group stability in animal societies, particularly when dominance and/or affilative interactions are typically governed by kinship